Breese & Gillet

Case [2021] FedCFamC1F 30

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Breese & Gillet [2021] FedCFamC1F 30

File number(s): BRC 8313 of 2016
Judgment of: BAUMANN J
Date of judgment: 20 September 2021
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Consideration of whether there ought be a discrete hearing in relation to an issue concerning a third party – Court persuaded little saving in cost and trial time will be achieved in a discrete hearing on the issue.
Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 10.13

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06

Cases cited:

Jones & Dunkel (1959) 101 CLR 298

Karjala & Gallard [2020] FamCA 110

Marley & Ormonde [2020] FamCA 1046

Division: Division 1 First Instance
Number of paragraphs: 36
Date of hearing: 13 August 2021
Place: Brisbane
Counsel for the Applicant: Mr Tonge
Solicitor for the Applicant: Stone Group Lawyers
Solicitor for the First Respondent: Mills Oakley Lawyers
Second Respondent: Litigant in person (did not participate)
Counsel for the Third and Fourth Respondents: Mr Alexander
Solicitor for the Third and Fourth Respondents: Richardson Murray
Counsel for the Fifth, Sixth and Seventh Respondents: Mr Bunning
Solicitor for the Fifth, Sixth and Seventh Respondents: Damien Greer Lawyers
Solicitor for the Eighth Respondent: Litigant in person (did not participate)

ORDERS

BRC 8313 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BREESE

Applicant
AND:

MR GILLETT

First Respondent

C Pty Ltd ACN …

Second Respondent

MR MANEN (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

17 SEPTEMBER 2021

THE COURT ORDERS:

1.That the Application by the Sixth Respondent, Ms Callander, for a discrete or separate hearing is dismissed.

2.That the Applications are adjourned for Case Management Hearing before the Honourable Justice Baumann at 2.00pm on 22 October 2021 in the Federal Circuit and Family Court of Australia Division 1 at Brisbane, with all parties and their legal representatives to appear personally.

3.That not less than forty eight (48) hours prior to the Case Management Hearing, each party shall file and serve a Costs Notice in accordance with r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which not only contains details of the costs incurred since the commencement of these proceedings and the source of payment of those costs, but also the estimated costs of preparing and appearing for a final hearing (including Counsel) on the basis of a five day hearing.

4.That the parties shall confer and seek to reach agreement as to:

(a)any further interim or interlocutory orders sought which the Court is required to determine;

(b)any further expert valuation evidence required or to be updated;

(c)the trial issues arising from the current competing Applications and Responses;

(d)a balance sheet which identifies issues in agreement and issues in dispute;

(e)details of witnesses to be relied upon at the Final Hearing; and

(f)a draft trial plan.

5.That the…

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AGLC
Breese & Gillet [2021] FedCFamC1F 30
Case
[2021] FedCFamC1F 30
Decision Date

CaseChat Overview and Summary

The case of Breese & Gillet involved a complex family law dispute between Ms Breese, the applicant, and Mr Gillet, the first respondent, along with other parties, including Mr Manen and Ms Callender. The dispute centred around various property interests, including a motor vessel, retail businesses, and a property in Suburb K, as well as issues of credit and fact-finding related to the relationships and dealings between the parties. The matter was before the Federal Circuit and Family Court of Australia (Division 1). The primary legal issue the court had to decide was whether a separate or discrete hearing should be held to determine the ownership of the motor vessel "H," which was claimed to comprise over 50% of the quantified property to be distributed between the de facto wife and husband. The court considered the potential benefits of a discrete hearing, including cost savings and time efficiency, but ultimately concluded that such a hearing would not significantly advance the proceedings.

The court reasoned that the ownership of the motor vessel was intertwined with broader issues involving Ms Callender and the business relationships between the parties. It was likely that credit findings regarding multiple parties, including the applicant, respondent, Ms Callender, Mr Manen, and potentially even Mr F Gillet, would be necessary. The court expressed reservations about the potential costs these parties might incur in investigating and exploring these issues through cross-examination. Given the intricate web of relationships and the necessity of credit findings on the separate trial, the court decided that little saving in costs or trial time would be achieved by holding a discrete hearing. The court also noted that many significant issues had already been identified, including the validity of a mortgage over the Suburb K property, the parties' interests in the motor vessel "H," and the handling of retail businesses at separation. The court dismissed the application for a separate hearing and scheduled a case management hearing to manage the remaining interim and interlocutory orders, including injunctions, further discovery, joinder of parties, and valuations. The court ordered that all parties file and serve a Costs Notice before the case management hearing, detailing the costs incurred and estimated costs for the final hearing. The parties were also required to confer and attempt to reach agreement on several matters, including further interim or interlocutory orders, expert valuation evidence, trial issues, a balance sheet of issues in agreement and dispute, details of witnesses, and a draft trial plan.

The court's final orders included dismissing the application for a discrete hearing, scheduling a case management hearing for 22 October 2021, and reserving the costs of the hearing conducted on 13 August 2021 to the trial. The court emphasised the need for careful and consistent case management to ensure the matter was listed for trial early in 2022.

Orders

Orders of the court

BRC 8313 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BREESE

Applicant

AND:

MR GILLETT

First Respondent

C Pty Ltd ACN …

Second Respondent

MR MANEN (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

17 SEPTEMBER 2021

THE COURT ORDERS:

1. That the Application by the Sixth Respondent, Ms Callander, for a discrete or separate hearing is dismissed.

2. That the Applications are adjourned for Case Management Hearing before the Honourable Justice Baumann at 2.00pm on 22 October 2021 in the Federal Circuit and Family Court of Australia Division 1 at Brisbane, with all parties and their legal representatives to appear personally.

3. That not less than forty eight (48) hours prior to the Case Management Hearing, each party shall file and serve a Costs Notice in accordance with r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which not only contains details of the costs incurred since the commencement of these proceedings and the source of payment of those costs, but also the estimated costs of preparing and appearing for a final hearing (including Counsel) on the basis of a five day hearing.

4. That the parties shall confer and seek to reach agreement as to:

(a) any further interim or interlocutory orders sought which the Court is required to determine;

(b) any further expert valuation evidence required or to be updated;

(c) the trial issues arising from the current competing Applications and Responses;

(d) a balance sheet which identifies issues in agreement and issues in dispute;

(e) details of witnesses to be relied upon at the Final Hearing; and

(f) a draft trial plan.

5. That the costs of the parties in respect of the hearing conducted on 13 August 2021 are reserved to the trial.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The de facto wife submits that there are important issues of credit and complex issues of fact and law in this case involving Ms Callender and the motor vessel, as well as the retail businesses such that it is not appropriate, in the exercise of discretion, to order a separate or discrete hearing.CONCLUSION At first blush, there appeared some utility and a chance to narrow issues where the dispute over the ownership of the motor vessel “H” represented an asset that could comprise over 50% of the available and quantified interests or property for alteration between the de facto wife and de facto husband. However, I am persuaded that the issue of the ownership of the boat is but one of the issues that arise from the asserted business relationship between the de facto husband and Ms Callender. It seems inevitable, in this case, that credit findings in respect of, at least:(a)the Applicant de facto wife;(b)the First Respondent de facto husband;(c)Ms Callender;(d)Mr Manen, the Applicant’s current de facto partner; and(e)possibly even Mr F Gillet,are likely to be necessary. I hold significant reservations and concerns about the costs these parties are likely to incur in investigating and exploring, through cross-examination, the issues raised in the material already filed, such that costs orders ultimately may not be an appropriate remedy. It has hardly been to the benefit of the Applicant and the First Respondent that, for reasons not entirely clear to me at this stage, the proceedings have progressed so slowly through the litigation pathway. Even if the Court expert did complete a report some years ago, its relevance now might be questionable – and in that regard it is not before me and I have not read it. On balance, I have decided to dismiss the application for a separate or discrete hearing about the ownership of the vessel “H” because I am persuaded little saving on costs or trial time will be achieved. Because of the other events said to involve Ms Callender, any necessary credit findings on the separate trial will inevitably mean that I would be unable to hear the balance of the issues. There are still a number of competing interim and/or interlocutory orders sought (including for injunctions, further discovery, joiner of parties and valuations) to be decided. I am satisfied that this is a case that requires careful and consistent case management by a Judge to have it listed for trial early in 2022. It seems to me that many of the substantial issues in dispute, apart from the general assertions as to contributions under s 90SM(4)(a), (b) and (c) and relevant s 90SF factors, have already been identified and include:(a)the parties and/or Mr Manen’s interest in the Suburb K property;(b)the validity of a mortgage over the Suburb K property in favour of Mr Manen;(c)the parties and/or Ms Callender’s interest in the motor vessel “H”;(d)how the de facto husband dealt with the retail businesses in existence at separation and whether his actions, including loans from Ms Callender and/or dealings in the businesses, are matters that should be taken into account. In this respect, the report of Mr L may have concluded with some opinions about the businesses; and(e)the loans by Mr F Gillet.

Ratio Decidendi

Legal Principle Established

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